* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 262-64/2005 Reserved on:26.10.2010 Decided on:.02.11.2010 MOHD. NAUMAN KHAN & ORS.... Appellants Through: Mr.M.A.Niyazi, Mr.Manish Kumar, Advs. versus ABDUL MOEED & ORS. Through: CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG... Respondents Mr. Ravinder Sethi, Sr.Adv. with Mr.Simran Mehta, Mr.Puneet Sharma, Advs. 1. Whether the Reporters of local papers may be allowed Yes to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG,J 1. This appeal raises a substantial question of law as to whether the Civil Courts have jurisdiction under Section 92 of the Code of Civil Procedure (CPC) to direct framing of scheme with respect to a management of the Wakf Property despite existence of the Wakf Board and Wakf Tribunal in the State. 2. To appreciate the controversy, it would be appropriate to take note of the prayer made by the appellant, who filed an application under Section 92 of the CPC for grant of leave for instituting a suit under Section 92 of the CPC against Mr.Abdul Moeed, Chief Mutawali, Hamdard (Wakf) Lab, Mr. Hammad Ahmed, Senior Mutawali, Hamdard (Wakf) Lab, Mr.Abdul Majid, s/o Mr.Abdul Moeed, Mutawali, Hamdard (Wakf) Lab., Mr.Asad Moeed, S/o Mr.Abdul Moeed, Mutawali, Hamdard (Wakf) Lab., Mr.Hamid Ahmed, s/o Mr.Hammad Ahmed, Mutawali, Hamdard (Wakf) Lab, Delhi Wakf Board, through Executive Officer, Delhi Wakf Board, Near Bachhon ka Ghar, Daryaganj, New Delhi-110 002. 3. In the application filed under Section 92 of the CPC besides alleging various acts of mismanagement on the part of the respondents FAO 262-64/2005 Page 1 of 17
No.1 to 5, it was pleaded that the entire facts and circumstances as stated above clearly establish that respondents No.1 to 5 in blatant breach of trust/wakf are acting detrimental to the interest of Wakf and defeating the very purpose of the wakf for which it was created. The mal-administration, malfeasance, malappliction of funds, siphoning of funds by illegally selling the wakf properties warrants immediate and urgent indulgence of this Court and appropriate directions of this Court are deemed necessary for the proper administration of Hamdard (Wakf) Lab. Therefore, directions of this Court in the nature of removal of present mutawallis, appointment of new mutawallis, direction of accounts and enquiries of Hamdard (Wakf) Lab regarding maladministration, malfeasance, misapplication and siphoning of funds and wakf and appropriate directions to the Delhi Wakf Board for taking all actions as per the provisions of the Wakf Act, 1995 (for short the Act ) are also required in the facts and circumstances of the case. Furthermore, a scheme is also necessary to be settled by this Court for achieving the object and purpose of Hamdard (Wakf) Lab in the larger interest of the public/beneficiaries/trustees of the Hamdard (Wakf) Lab. 4. With the aforesaid assertions, following prayers were made in the application: In the premises set out hereinabove, it is, prayed to this Court that in the interest of justice, equity and fair play, this Court may:- (a) (b) grant leave to the applicants to institute suit under Section 92 CPC against the abovementioned defendants for seeking the relief as mentioned in para No.15 above. Pass any other or further order as this Hon ble Court may deem fit and proper in the facts and circumstances of the case. 5. The application was contested by the respondents by filing reply who raised preliminary objections to the grant of leave by submitting that the petition as framed is not maintainable in view of the fact that the petitioners have alleged that Hamdard Dawakhana (Wakf) is a Wakf within the meaning of Wakf Act, though this is not conceded/admitted FAO 262-64/2005 Page 2 of 17
by the respondents. The petition as such is barred by Section 85 of the Wakf Act, 1995. 6. The learned ADJ dismissed the application under Section 92 of the CPC moved by the appellant by passing the impugned order dated 30.07.2005. 7. In the impugned order after taking note of Section 94 of the Act read with Section 83(2) and Section 85 of the Act it was held that in view of the special law available to deal with certain situations and aspects for monitoring the maintenance of wakf property and the management thereof, Civil Courts would have no jurisdiction to frame scheme as prayed for which is the purpose of moving the application under Section 92 of the CPC. It would be appropriate at this stage to take note of the provisions contained under Section 94, 83(2) and 85 of the Act which reads as under:- 94. Power to make application to the Tribunal in case of failure of mutawalli to discharge his duties.- (1) Where a mutawalli is under an obligation to perform any act which is recognised by Muslim law as pious, religious or charitable and the mutawalli fails to perform such act, the Board may apply to the Tribunal for an order directing the mutawalli to pay to the Board or to any person authorised by the Board in this behalf, the amount necessary for the performance of such act. (2) Where a mutawalli is under an obligation to discharge any other duties imposed on him under the Wakf and the mutawalli willfully fails to discharge such duties, the Board or any person interested in the Wakf may make application to the Tribunal and the Tribunal may pass such order thereon as it thinks fit. 8. Section 83(2) of the Act which is relevant is also reproduced hereunder: 83. Constitution of Tribunals, etc.,- (1) (2) Any mutawalli person interested in a Wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. FAO 262-64/2005 Page 3 of 17
9. Section 85 of the Wakf Act which excludes the jurisdiction of the Civil Court is also being reproduced hereunder: 85. Bar of jurisdiction of Civil Courts.-No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by a Tribunal. 10. Learned counsel for the appellant submits that the impugned order cannot be sustained in law for the reason that looking into the scheme of the Act, the powers which are with the Civil Court under Section 92 of CPC are not available to the Wakf Tribunal which is in fact an appellate forum. Relying upon two judgments delivered by the Supreme Court i.e. M.P.Wakf Board Vs. Subhan Shah (Dead) By Lrs. & Ors. (2006) 10 SCC 696 and Ramesh Gobindram (Dead) Through LRs Vs. Sugra Humayun Mirza Wakf 2010 STPL (Web) 679 Supreme Court, it was pleaded that the aforesaid judgments have interpreted the issue with regard to the applicability of the Civil law in situations where the Act does not deal with the situations. 11. The respondents while relying upon their objections taken in the reply to the applications under Section 92 with a view to support the stand taken even before the ADJ have also relied upon the judgment delivered by the Apex Court in M.P.Wakf Board Vs. Subhan Shah (Dead) By Lrs. & Ors. (Supra). It would be relevant to take note of paragraphs 27, 28 and 29 of this judgment which explains the position: 27. The Wakf Act is a self-contained code. Section 32 of the 1995 Act provides for powers and functions of the Board. Sub-section (2) of Section 32 of the 1995 Act enumerates the functions of the Board without prejudice to the generality of the power contained in Sub-section (1) thereof. Clauses (d) and (e) of Sub-section (2) of Section 32 of the 1995 Act reads as under: 32.(2)(d) to settle schemes of management for a wakf: Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; (e) to direct- (i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf; FAO 262-64/2005 Page 4 of 17
(ii) in what manner the income of a wakf, the object of which are not evident from any written instrument, shall be utilized; (iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community: Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard. Explanation.-For the purposes of this clause, the powers of the Board shall be exercised- (i) in the case of a Sunni wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia wakf, by the Shia members of the Board only: Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause; 28. The Tribunal had been constituted for the purposes mentioned in Section 83 of the 1995 Act. It is an adjudicatory body. Its decision is final and binding but then it could not usurp the jurisdiction of the Board. Our attention has not been drawn to any provision which empowers the Tribunal to frame a scheme. In absence of any power vested in the Tribunal, the Tribunal ought to have left the said function to the Board which is statutorily empowered therefore. Where a statute creates different authorities to exercise their respective functions thereunder, each of such authority must exercise the functions within the four corners of the statute. 29. It is trite that when a procedure has been laid down the authority must act strictly in terms thereof. [See Taylor v. Taylor (1875) 1 Ch D 426 12. Relying upon the aforesaid judgment, it is submitted on behalf of the appellant that the wakf board constituted under the Wakf Act though is eligible to frame the scheme but would not exclude the FAO 262-64/2005 Page 5 of 17
jurisdiction of the Civil Court inasmuch as in the absence of the wakf board refusing or not acting on the complaints, the remedy only would be available to approach the Civil Court because even the Wakf Tribunal will be not having jurisdiction to frame a scheme as prayed for by the appellant. 13. Relying upon the other judgment delivered in the case of Ramesh Gobindram (Dead) Through LRs Vs. Sugra Humayun Mirza Wakf (supra), it is pleaded that in areas where the wakf tribunal does not have any jurisdiction, the Civil Courts will have jurisdiction. The relevant paragraphs relied upon by the respondents are reproduced hereunder: 4. Wakfs and matters relating thereto were for a long time governed by the Wakf Act, 1954. The need for a fresh legislation on the subject was, however, felt because of the deficiencies noticed in the working of the said earlier enactment especially those governing the Wakf Boards, their power of superintendence and control over the management of individual wakfs. Repeated amendments to the 1954 Act, having failed to provide effective answers to the questions that kept arising for consideration, the Parliament had to bring a comprehensive legislation in the form of Wakf Act 1995 for better administration of wakfs and matters connected therewith or incidental thereto. Chapter I of the 1995 Act deals with Preliminaries like definitions, title, extent and commencement and application of this Act. Chapter II provides for preliminary survey of wakfs, publication of list of wakfs, disputes regarding wakfs and also the powers of the Tribunal to determine such disputes. Chapter III deals with Central Wakf Council while Chapter IV deals with establishment of Boards and their functions. Chapter V, VI and VII regulate the registration of Wakfs and maintenance of accounts thereof and the finances of the Wakf Board. Chapter VIII, with which the controversy at hand is more intimately connected deals with judicial proceedings and, inter alia, provides for constitution of tribunals and adjudication of disputes by them as well as exclusion of jurisdiction of Civil Courts. Chapter IX is a miscellaneous chapter that confers power on the Central Government to regulate the secular activities of wakfs and empowers the State Government to issue directions apart from other provisions like establishment and reorganization and establishment of boards. 5. Before we take up the core issue whether the jurisdiction of Civil Court to entertain and adjudicate upon disputes regarding eviction of wakf property stands excluded under the Wakf Act we may briefly outline the approach that the FAO 262-64/2005 Page 6 of 17
Courts have to adopt while dealing with such questions. The well-settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of Civil Courts to try suits of civil nature is very expansive. Any statue which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a Civil Court. Any such exception cannot be readily inferred by the Courts. The Court would, lean in favour of a construction that would uphold the retention of jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that Civil Court's jurisdiction is ousted. 6. Even in cases where the statute accords finality to the orders passed by the Tribunals, the Court will have to see whether the Tribunal has the power to grant the reliefs which the Civil Courts would normally grant in suits filed before them. If the answer is in negative exclusion of the Civil Courts jurisdiction would not be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa (2):(2009) 4 SCC 299, a three-judge Bench of this Court observed: There is a presumption that a civil court has jurisdiction. Ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction. 7. 8. Let us now see whether the respondent-wakf Board who claims exclusion of jurisdiction of Civil Court has discharged the onus that lay upon it. Section 6 of the Act which bears direct relevance to that question may at this stage be extracted: Section 6. Disputes regarding wakfs.- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. FAO 262-64/2005 Page 7 of 17
Explanation-For the purposes of this section and Section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4. (2) Notwithstanding anything contained in Sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason, only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under Sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modified in pursuance of a decision of the Tribunal under Sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in Sub-section (1). 9. A plain reading of Sub-section (5) of Section 6 (supra) would show that the Civil Court's jurisdiction to entertain any suit or other proceedings stands specifically excluded in relation to any question referred to in Sub-section (1). The exclusion it is evident from the language employed is not absolute or all pervasive. It is limited to the adjudication of the question (a) whether a particular property specified as wakf property in the list of wakfs is or is not a wakf property, and (b) whether a wakf specified in such list is a Shia wakf or a Sunni wakf. The Board or the mutawalli of the wakf or any person interested in the wakf is competent to institute a suit in a Tribunal for a decision on the above question or questions, which decision shall then be final provided that no such suit can be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. 10. We may at this stage refer to Section 7 of the Act which provides for the forum for determination of questions referred to therein and arising after the commencement of this Act. What is important is that the questions referred to in Section 7(1) are the very same questions that are referred to in Section 6(1) with the only difference that Section 7(1) FAO 262-64/2005 Page 8 of 17
refer to the said questions arising after the commencement of the Act. Section 7 is extracted below: Section 7. Power of Tribunal to determine disputes regarding wakfs.- (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that - (a) in a case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and (b) in the case of the list of wakfs to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement; Provided further that where any such question has been heard and finally decided by a Civil Court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of Sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any Court. Tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under Sub-section (1). (4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under Sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a Civil Court under Sub-section (1) of Section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or FAO 262-64/2005 Page 9 of 17
proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be. 11. Second proviso to Section 7(1) accords finality to the judgments of the Civil Court in suits instituted before such commencement. Sub-section (5) to Section 7 excludes from the jurisdiction of the Tribunal any dispute which is the subject matter of a suit in a Civil Court instituted before the commencement of the Act. 12. From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property. 14. From the discussion held above, it is apparent that the Court was, in fact, discussing the cases of eviction to be sought for in which adequate provisions are not in existence in the Act and specific provisions like Delhi Rent Control Act are in existence and which would govern the field. 15. It would also be relevant to take note of para 21-23 of the aforesaid judgment which reads as under: 21. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the Civil Courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters as are FAO 262-64/2005 Page 10 of 17
required by or under this Act to be determined by the Tribunal. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded. 22. In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed. 23. In the result these appeals succeed and are hereby allowed. The impugned orders passed by the High Court and those passed by the Wakf Tribunal shall stand set aside and the suit filed by the respondent-wakf Board for the eviction of the appellants dismissed leaving the parties to bear their own costs. We make it clear that this order shall not prevent the Wakf Board from instituting, if so advised, appropriate civil action before the competent Civil Court for redress in accordance with law. No costs. 16. Thus, it is clear that the exclusion of the jurisdiction of the Civil Court does not extend beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act inasmuch as these provisions simply empower the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matters relating to Wakf property which does not ipso facto mean that the jurisdiction of the civil Court stands completely excluded by one of such establishments. 17. Section 85 of the Act provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters and are FAO 262-64/2005 Page 11 of 17
required by or under this Act to be determined by the Tribunal. The crucial question which will have to be answered in every case would be whether a plea regarding exclusion of jurisdiction of civil Court raised is whether the Tribunal under the Act or Rules is required to deal with a matter sought to be brought before the civil Court. If it is not, the jurisdiction of the civil court is not excluded. If the Tribunal is deciding the matter, the jurisdiction of the civil Court stands excluded. 18. Applying the aforesaid, principles to the facts of this case, it becomes essential to take note of Section 94 (supra) of the Act. perusal of Section 94 of the Act as stated above goes to show that where Mutawali is under an obligation to perform any act which is recognised by Muslim law as pious, religious or charitable and if the mutawalis fail to perform such act, the board may apply to the Tribunal for an order directing mutawalli to pay to the Board or any person authorized by the Board in this behalf the amount necessary for the performance of such act and further if mutawalli willfully fails to discharge duties, the Board or such person interested in the wakf may make an application to the Tribunal and the Tribunal may pass such order thereon as it thinks fit. 19. Section 85 of the Act bars proceedings in any civil court in respect of any dispute, question or that matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal. 20. Section 63 and 64 of the Act deals with powers of appointment and removal of mutawallis and which provides that the Board may appoint any person as mutawalli for such period and on such conditions as it may think fit and may also remove the mutawalli from his office. Section 63 and 64 of the Act read as under: 63. Power to appoint mutawallis in certain cases.-when there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the Wakf, or where the right of any person to act as mutawalli is disputed, the board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit. 64. Removal of Mutawalli.- (1) Notwithstanding anything contained in any other law or the deed of Wakf, the Board may remove a mutawalli from his office if such mutawalli- FAO 262-64/2005 Page 12 of 17 A
(a) has been convicted more than once of an offence punishable under section 61; or (b) has been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or (c) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a mutawalli; or (d) is an undischarged insolvent; or (e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or (f) is employed as paid legal practitioner on behalf of, or against, the Wakf; or (g) has failed, without reasonable excuse, to maintain regular accounts for two consecutive years or has failed to submit, in two consecutive years, the yearly statement of accounts, as required by sub-section (2) of section 46; or (h) is interested, directly or indirectly, in a subsisting lease in respect of any Wakf property, or in any contract made with, or any work being done for, the Wakf or is in arrears in respect of any sum due by him to such Wakf; or (i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the Wakf or in respect of any money or other Wakf property; or (j) wilfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder; (k) misappropriates or fraudulently deals with the property of the Wakf. (2) The removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the Wakf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (3) No action shall be taken by the Board under sub-section (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board. (4) A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (j) of sub-section (1), may within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final. (5) Where any inquiry under sub-section (3) is proposed, or commenced, against any mutawalli, the Board may, if it is of FAO 262-64/2005 Page 13 of 17
opinion that it is necessary so to do in the interest of the Wakf, by an order suspend such mutawalli until the conclusion of the inquiry: Provided that no suspension for a period exceeding ten days shall be made except after giving the mutawalli a reasonable opportunity of being heard against the proposed action. (6) Where any appeal is filed by the mutawalli to the Tribunal under sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver to manage the Wakf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), appoint a suitable person as receiver to manage the Wakf and direct the receiver so appointed to ensure that the customary or religious rights of the mutawalli and of the Wakf are safeguarded. (7) Where a mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the mutawalli to deliver possession of the Wakf property to the Board or any officer duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the Wakf property. (8) A mutawalli of a Wakf removed from his office under this section shall not be eligible for reappointment as a mutawalli of that Wakf for a period of five years from the date of such removal. 21. Section 65 of the Act reads as under: 65. Assumption of direct management of certain Wakfs by the Board.- (1) Where no suitable person is available for appointment as a mutawalli of a Wakf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling up of the vacancy in the office of a mutawalli is prejudicial to the interests of the Wakf, the Board may, by notification in the Official Gazette, assume direct management of the Wakf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notification. 22. It would also be relevant to take note of the Sections 66 and 67 of the Act which read as under: 66. Powers of appointment and removal of mutawalli when to be exercised by the State Government.- Whenever a deed of Wakf or any decree or order of a Court of any scheme of management of any Wakf provides that a Court or any authority other than a Board may appoint or FAO 262-64/2005 Page 14 of 17
remove a mutawalli or settle or modify such scheme of management or otherwise exercise superintendence over the Wakf, then notwithstanding anything contained in such deed of Wakf, decree, order or scheme, such powers aforesaid shall be exercisable by the State Government: Provided that where a Board has been established, the State Government shall consult the Board before exercising such powers. 67. Supervision and supersession of committee of Management.- (1) Whenever the supervision or management of a Wakf is vested in any committee appointed by the Wakf, then, notwithstanding anything contained in this Act, such committee shall continue to function until it is superseded by the Board or until the expiry of its term as may be specified by the Wakf, whichever is earlier: Provided that such committee shall function under the direction, control and supervision of the Board and abide by such directions as the Board may issue from time to time: Provided further that if the Board is satisfied that any scheme for the management of a Wakf by a committee is inconsistent with any provision of this Act or of any rule made thereunder or with the directions of the Wakif, it may, at any time, modify the scheme in such manner as may be necessary to bring it in conformity with the directions of the Wakif or of the provisions of this Act and the rules made thereunder. 23. Section 69 of the Act reads as under: 69. Power of Board to frame scheme for administration of Wakf.-(1) Whenever the Board is satisfied, whether on its own motion or on the application of not less than five persons interested in any Wakf, that it is necessary or desirable to frame a scheme for the proper administration of the Wakf, after consultation with the mutawalli or the applicant, in the prescribed manner. (2) A scheme framed under sub-section (1) may provide for the removal of the mutawalli of the Wakf holding office as such immediately before the date on which the scheme comes into force: Provided that where any such scheme provides for the removal of any hereditary mutawalli, the scheme shall also provide for the appointment of the person next in hereditary succession to the mutawalli so removed, as one of the members of the committee appointed for the proper administration of the wakf. FAO 262-64/2005 Page 15 of 17
(3) Every order made under sub-section (2) shall be published in the prescribed manner, and, on such publication shall be final and binding on the mutawalli, and all persons interested in the Wakf: Provided that any person aggrieved by an order made under this section may, within sixty days from the date of the order, prefer an appeal to the Tribunal and after hearing such appeal, the Tribunal may confirm, reverse or modify the order: Provided further that the Tribunal shall have no power to stay the operation of the order made under this section. (4) The Board may, at any time by an order, whether made before or after the scheme has come into force, cancel or modify the scheme. (5) Pending the framing of the scheme for the proper administration of the Wakf, the Board may appoint a suitable person to perform all or any of the functions of the mutawalli thereof and to exercise the powers, and perform the duties, of such mutawalli. 24. In view of the aforesaid, it is apparent that the Act provides for a scheme to deal with the management of a wakf property, to appoint a mutawalli as well as to remove the same. A committee can also be appointed subject to directions of the Central Government and in case where there is a need to remove the mutawalli, it can be done by the Board in exercise of the powers vested under Section 64 of the Act. The Court can also direct the management of certain wakf as provided for under Section 65. Further Section 69 of the Act empowers the Boards to frame scheme for administration of wakf. 25. If these actions are not taken by the Board when required, one can approach the Wakf Tribunal for seeking a direction to the Board to do the needful. In fact, as per Section 86 of the Act, Wakf Tribunal can even appoint a receiver of a wakf property. Section 89 and 90 of the Act also makes the presence of the Board in every litigation necessary. In view of Section 94, the Board or any other person interested in the wakf may make an application to the Tribunal for passing appropriate orders. Moreover, there is also an appellate authority prescribed under Section 95. FAO 262-64/2005 Page 16 of 17
26. Taking all these facts into consideration, it is apparent that the Wakf Act provides for a complete solution to the issues raised by the appellant. To take care of his grievance, he can initially approach the Wakf Board and if the Board does not act in accordance with law then he can always assail the order of the Board before the Wakf Tribunal and even thereafter can appeal before the appellate authority if need arises. 27. Considering the specific provisions made under the Act as discussed above, which may take care of all the issues raised by the appellant in relation to the management of the wakf properties and even to take an action against the mutawallis who are not performing their functions in accordance with law, it cannot be said that it is necessary for a civil court to intervene under Section 92 of the CPC with the jurisdiction of the civil Court in relation to those matters where the wakf board or the Tribunal is competent to deal with, the Civil Courts will have the jurisdiction. It may be observed here that in view of the scheme of the Act, the appellant is certainly entitled to approach the Wakf Bord for the grievance which he has raised under Section 92 of the CPC. It is expected that the Wakf Board will take necessary steps and if they are not taking, the appellant can certainly approach the Wakf Tribunal. However, the question of approaching the civil court under Section 92 of the CPC does not arise. 28. Accordingly, the appeal filed by the appellant is of no consequence and the same deserves dismissal. 29. Consequently, the appeal filed by the appellant is dismissed. 30. No costs. C.M.12814/2005 Interim orders, if any, are vacated and the application is disposed of. C.Ms.14557/2005 & 3094/2006 The applications are disposed of as having become infructous. NOVEMBER 02, 2010/ anb MOOL CHAND GARG,J FAO 262-64/2005 Page 17 of 17